Memorandum on Professional Practice Guidelines

March 15, 1999

To: Professional State Board Members

From: Johanna Duncan-Poitier

Subject: Professional Practice Guidelines

I write to clarify the purpose and use of practice guidelines developed
by Professional State Boards. Practice guidelines provide guidance regarding
the implementation of Rules of the New York State Board of Regents to practitioners
for the promotion of good practice. Because of questions recently posed
about the meaning and use of these guidelines, the following is a more detailed
description of the purpose, benefits and limitations of this important tool.

In accordance with Section 6504 of Title VIII of the Education Law:

"Admission to the practice of the professions and regulation of
such practice shall be supervised by the board of regents and administered
by the education department, assisted by a state board for each profession."

The Board of Regents' supervision and the State Education Department's
administration of professional regulation is guided by the Education Law,
Regents Rules and Commissioner's Regulations. To meet their responsibility
to assist in regulating the practice of the professions, several professional
State Boards have developed practice guidelines to assist licensed professionals
in understanding how to apply the law and accompanying rules and regulations
in their daily practice. They are intended to provide licensees with guidance
to promote good practice and prevent incidents of professional misconduct. 1

1 It should also be understood that
it is not the intent of the guidelines to establish a standard
for the evaluation of issues in civil liability lawsuits involving claims
of negligence or malpractice. The intent is to provide a frame of reference
to be used with other appropriate considerations for assessment of issues
relating to professional misconduct and unprofessional conduct as defined
by statute, Regents Rule or Commissioner's Regulations.

Practice guidelines can benefit licensees and consumers by broadening
their understanding of statutory and regulatory language that defines
professional practice, including professional misconduct and unprofessional
conduct. They inform practitioners of the Office of the Professions'
and State Board's perspective of what constitutes good practice
in their profession. In the discipline process, practice guidelines
can serve as one of many resources that may be referred to by a
board member in consultations, early involvement meetings, and
informal settlement conferences, all of which seek resolution of
complaints. When combined with the board member's education, experience,
and prior activity in the profession and the disciplinary process,
they can inform a board member's recommendation when consulted
upon a complaint.

Practice guidelines, however, are not a substitute for or
have the authority of Education Law, Regents Rules, or Commissioner's
Regulations. They do not have the force of the law. Therefore,
while the guidelines may be a resource in assessing conduct that
underlies a violation, they may not be used as the basis for
a charge of professional misconduct. Specifically, a professional
cannot be charged with professional misconduct based upon a violation
of or failure to comply with guidelines. A licensee can only be
charged with professional misconduct if there is a violation
of the Education Law or Regents Rules. Nor can conformance with
guidelines be deemed to immunize a professional from potential
charges of misconduct. Those determinations are to be made on
a case by case basis by the Professional Conduct Officer in accordance
with Section 6510 of the Education Law.

In formal disciplinary hearings, a guideline may not be used in
deliberations unless the Administrative Officer determines that
it is admissible. Unless guidelines have been legally admitted
into evidence upon a motion to be decided by the administrative
officer, a panel should not refer to guidelines because a determination
should be based solely on the evidence of individual conduct in
an individual case. We realize that a panel member may have discussed
and contributed to the development of practice guidelines. That
is part of the board member's perspective, formed by his or her
professional background, education, experience, research, and discussions.
When a board member serves on a hearing panel, due process requires
that board member to disregard whatever knowledge or insight was
developed during the development of the guidelines unless they
have been admitted into evidence, as noted above.

A guideline cannot be part of the hearing record or considered
as evidence of the respondent's guilt, unless it has been admitted
into evidence. In analyzing and interpreting the evidence presented
in the hearing record, panel members should not substitute any
guideline for evidence or proof of any charge.

As an articulation of good practice, guidelines are a very important
tool for the State Education Department in meeting its critical
mission of promoting good practice. I appreciate the thoughtfulness
and dedication all of the State Professional Board Members bring
to matters of professional licensure, practice, and discipline.
Your role in the disciplinary process in describing and interpreting
what is good practice are essential in assisting the Regents and
the Department in matters of practice. If you have any questions
in this matter, please contact Doug Lentivech in the Office of
Professional Responsibility at (518) 486-1765 or e-mail at
dlentivech@nysed.gov.

Again, my appreciation to you for the time, dedication, and professional
expertise you devote to regulation.